S.K. Mishra, C.J.

1. Following mixed questions of facts and law and also pure questions of law arise for determination in this case:-

(i) Whether chewing tobacco containing food additives comes within the definition of "food" under the Food Safety and Standards Act, 2006 (hereinafter referred to as 'the FSSA" for brevity)

(ii) Whether the Commissioner of Food Safety has jurisdiction to permanently prohibit chewing tobacco containing food additives under the provisions of the FSSA

(iii) Whether the tobacco industry and food industry are two distinct and separate industries-one, falling under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as "the COTPA" for brevity)

(iv) Whether scheduled tobacco product cannot be treated as "food" under the FSSA in spite of the fact that food additives are found in the finished goods and it remains essentially a tobacco product to be regulated under the COTPA and not under the FSSA

(v) Whether the impugned advisory and notification(s) dated 21st September, 2017 (Annexure 4), 18.12.2018 (Annexure 5) and 12.01.2021 (Annexure 7), are liable to be quashed because of lack of jurisdiction as well as non-application of mind by Commissioner of Food Safety

2. The Smokeless Tobacco Association representing the Tobacco Producers and Traders has filed this writ petition to issue a writ in the nature of certiorari quashing the letter dated 21.09.2017 issued by respondent No. 1 (Annexure 4 to the writ petition) whereby the respondent No. 2 has been suggested to devise a mechanism for issuing license for sale of tobacco. Further, it has been prayed for issuance of appropriate writ, order or direction, including writ of certiorari for quashing the order dated 18.12.2018 (Annexure 5) and Notification No. F.16/Khadya (Vividh)/12-06/2017/05(16) Heath, Ranchi dated 12.01.2021 issued by the Principal Secretary-cum-Commissioner of Food Safety, Government of Jharkhand (Annexure-7). The petitioner has also prayed for consequential relief.

3. The petitioner is a society registered under the Societies Registration Act, 1860. It is an Association of legal entities and persons engaged in the manufacturing, trading, marketing and dealing in all forms of smokeless tobacco products.

4. It is stated on behalf of the petitioner that tobacco plays a significant role in the Indian economy as it contributes substantially in terms of excise revenue and employment. India is the second largest producer of tobacco and also a major exporter of unmanufactured tobacco. The tax and GST collection from tobacco products in the year 2019-20 was stated to the tune of Rs. 53,540/-Crores.

5. Entry 52 of List I of the Seventh Schedule of Constitution reserves the field of controlled industries within the competence of the Parliament. Entry 52 List 1 reads as follows:-

"52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest."

6. Relevant part of Entry 33 of List III reads as follows:-

"33. Trade and commerce in, and the production, supply and distribution of,-

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

(c) ... ... ...

(d) ... ... ...

(e) ... ... ..."

7. It is the case of the petitioner that the schedule appended to COTPA includes chewing tobacco in Serial No. 6 and, therefore, it is governed under the COTPA.

8. It is further case of the petitioner that under the aegis of the World Health Organization ('WHO' in short), the Codex Alimentarius has been created which is a collection of internationally adopted food standards and related texts presented in a uniform manner. The food standards and related texts aim at protecting consumers' health and ensuring fair practices in the food trade. The publication of the Codex Alimentarius is intended to guide and promote the elaboration and establishment of definitions and requirements for foods to assist in their harmonization and in doing so, to facilitate international trade. The reference made to Codex food safety standards in the World Trade Organization's Agreement on Sanitary and Phytosanitary measures (SPS Agreement) means that Codex has far-reaching implications for resolving trade disputes. WTO Members that wish to apply stricter food safety measures than those set by Codex may require to justify these measures scientifically. Currently the Codex Alimentarius Commission has 189 Codex Members including India. The petitioner further submits that the Codex, "Food" means any substance, whether processed, semi-processed or raw, which is intended for human consumption and includes drink, chewing gum and any substance which has been used in the manufacture, preparation or treatment of food, but does not include cosmetics or tobacco or substances used only as drugs.

8.1) The petitioner further states that the Parliament promulgated the Food Safety and Standards Act, 2006 in order to consolidate the laws relating to foods. Various provisions of FSSA were brought into force between 15.10.2007 to 18.08.2010. It is further mentioned that the whole FSSA does not make any mention of tobacco. The definition does not include "tobacco", rather it means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. However, the Central Government may declare, by notification, any other particle as food for the purpose of FSSA.

8.2) In this context, it is submitted by the petitioner that tobacco product has been separately defined under the COTPA and the definition of food cannot include tobacco products, this is for the reason that except for imposing a restriction on use of tobacco in food products, the FSSA or regulations made therein do not make any mention of tobacco or tobacco products. Admittedly, inference drawn by the respondents to somehow include tobacco within the definition of "food" under the FSSA is out of context.

8.3) The petitioner further states that the tobacco products do not violate Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, (hereinafter referred to as "the Regulations" for the sake of brevity), because tobacco products in question is never manufactured or sold as "food products". Tobacco products are manufactured and sold strictly in accordance with COTPA. The scheme of manufacturing, advertisement and sale of tobacco products are totally different from the food products. Therefore, tobacco products and food products are distinct and separate items. The words "Regulation 2.3.4" itself treat food and tobacco as two different and distinct products.

8.4) It is also the case of the petitioner that presence of additives and fragrances, etc in the final tobacco products is negligible and insignificant by weight and volume. There is no prohibition on the use of additives and fragrances in tobacco products so long as a tobacco product is not passed as an item of food. However, it is pertinent to mention that according to law, tobacco is not meant for use as an item of food and presence of tobacco in an item would make it a 'tobacco product' which cannot be treated as item of food.

9. The cause of action arose when the respondent No. 3 vide letter dated 25.07.2012 under Section 30(2)(a) of the FSSA prohibited the manufacture, storage, sale or distribution of Gutkha and Pan Masala containing tobacco or nicotine for one year in the State of Jharkhand.

10. Counter affidavit has not been filed by respondent No. 1, but the records reveal that an affidavit has been filed on behalf of respondent No. 1 which is verified and sworn by the Under Secretary, Ministry of Health, Medical Education & Family Welfare, Govt. of Jharkhand. The respondent No. 1 would submit that the writ petition is misconceived and the petitioner has grossly misinterpreted facts of the case and, therefore, the writ application is liable to be dismissed in limine. The respondent No. 1 would further state that the contents of the impugned communication/order/notification issued by respondent No. 1 is misconstrued and, therefore, it is liable to be dismissed. The impugned letter dated 21.09.2017 is a suggestive letter and is not binding on States/Union Territories. Public Health is a State subject and the decision on the suggestion of the Union Government lies with the respective State Government. The said letter does not prevent vendors from selling tobacco products, hence the writ petition is misconceived and is liable to be dismissed. The respondent No. 1 further states that the constitutional validity of Section 3(j) and 30(2)(a) of the FSSA is sub judice before the Hon'ble Supreme Court in Central Areca-nut Marketing Corporation and others Versus Union of India and others [Transfer Case (C) No. 01 of 2010] and, therefore, the conflicting exercise of jurisdiction is liable to be dismissed.

10.1) The respondent No. 1 would further submit that the Parliament, with an intention to consolidate the laws relating to food and matters connected therewith, enacted the FSSA and also for laying down scientifically based standards of articles of food and to regulate their manufacture, storage, distribution, sale and import and to ensure availability of safe and wholesome food for human consumption. Section 92 of the FSSA empowers the Authority to make regulations with previous approval of the Central Government and after previous publication to carry out the object of the said Act. In exercise of the powers, the Authority has notified the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, which provide prohibitions and restrictions on sale of certain products. It is further stated that Chapter 2 of the Regulations under the heading 'Prohibitions and Restrictions on Sales' provides prohibition and restriction on sale of certain products. Regulation 2.3.4 of the said Regulations prescribes, 'Product not to contain any substance which is injurious to health; "Tobacco and nicotine shall not be used as ingredient in any food product." Reasonable restriction has been imposed in the interest of general public by way of Regulation 2.3.4. It is also submitted that the Regulation has been issued in accordance with the law in exercise of the powers conferred by Clause (e) of sub-section (2) of Section 92 read with Section 16 of the FSSA.

10.2) As per the provisions of the Regulations, 2011, no anti-caking agent shall be used in any food except where the use of anti-caking agent is specifically permitted. It is further submitted by respondent No. 1 that as per the provisions of the Act, use of anti-caking agent in Pan Masala is not permissible. The Respondent No. 1 further submits that Section 89 of the FSSA provides for an overriding effect on all other legislations, including COTPA and, therefore, the former would take precedence over the latter Act. The FSSA is a legislation which standardizes and regulates all kinds of food without any exclusion, whereas, COTPA specifically provides for restricting/regulating tobacco products, both smoking and smokeless, in respect of advertisement, etc, enforcement of prohibition of smoking in public places, specified health warnings, sale of tobacco products to minors and within the specified periphery of educational institutions. The object of the proposed legislation is to reduce the involuntary exposure of people to tobacco smoke (Passive smoking) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements, which result in a healthier lifestyle and protection of right to life enshrined in the Constitution. The former is not in exclusion of the latter and in case of any conflict, the provisions on the FSSA would take precedence over the latter, subject to the scope of the provisions under the Act, i.e., mixing tobacco or nicotine in food products.

10.3) Further, it is pleaded that on the direction of the Hon'ble Supreme Court in Ankur Gutkha Vs. Indian Asthma Care Society & Others, (SLP No. 16308 of 2007), vide order dated 07.12.2010, the National Institute of Public Health undertook comprehensive analysis and study of the contents of gutkha, tobacco, pan masala and similar articles manufactured in the country and it was found that the smokeless tobacco products contain 28 proven carcinogen. The major and most abundant group of carcinogen is the tobacco-specific N-nitrosamines and no safe level of chemical has been ascribed so far. Other carcinogens reportedly present in smokeless tobacco include volatile N-nitrosamines, certain volatile aldehydes, polynuclear aromatic hydrocarbons, certain lactones, etc. Results from various studies have shown that a high level of Nitrosamines in the branded Indian smokeless tobacco products is available in the market. A detailed report on the constituents of different brands of smokes tobacco available in India had reported substantive quantities of two potent carcinogens and heavy metals in some of these products. Other studies have also demonstrated presence of high level of heavy metals (Lead, Cadmium, Chromium, Arsenic and Nickel) in these products. It is, therefore, submitted that the NIHFW health report indicates a strong association between smokeless tobacco usage and incidence of oral, esophageal, stomach, pancreatic, throat (pharynx and larynx) and renal cancers. In addition to cancer, the studies have also shown a close association between smokeless tobacco usage and different types of periodontal diseases, hypertension and cardiovascular diseases, nervous system disease, metabolic abnormalities, adverse effects on reproductive health of both men and women including increased risk of fetal loss and higher incidence of pre-term and low birth babies. The report further reveals that Areca Nut or Betal Nut, which is the chief constituent of Pan Masala, causes certain ailments, which is not relevant for this particular case.

10.4) Similarly, the Respondent No. 1 cites the study made by Global Adult Tobacco Survey in India and says that the death in India, which is attributable to tobacco, is more than 13.5 Lakhs and 27% of all cancers can be attributed to tobacco use. It is also submitted that being a major health risk, the use of tobacco and associated mortality and morbidity are a significant economic burden on society. As per WHO study titled "Economic Costs of Diseases and Deaths Attributable to Tobacco Use in India, 2017-18" has estimated that economic burden of diseases and death attributable to tobacco alone in 2017-18 in India was as high as Rs. 1.77 lakh crores, amounting to 1% of GDP. The estimated economic loss for the next year is 21.5% higher than the previous year in real terms compared to 2011.

10.5) The definition of "food" as defined in 2(v)(a) of the Prevention of Food Adulteration Act, 1954, has been delved upon and it is submitted that any article used as food or drink for human consumption other than drugs and water and included any article which ordinarily enters into, or is used in the composition or preparation of human food. Therefore, it is submitted that tobacco is a food.

10.6) It is also submitted that the definition of "food" under the FSSA is exhaustive and covers products like Pan Masala and Gutkha. It is further submitted that the mandate of the FSSA is to ensure availability of safe and wholesome food for human consumption.

10.7) It is also submitted that the mention of Gutkha in the schedule of COTPA will not preclude it from the ban otherwise applicable to a food item having tobacco and nicotine. The schedule to the FSSA merely defines the words 'tobacco products'.

10.8) The Respondent No. 1 further submits that sweet flavorings are added to the packaged smokeless tobacco products to attract prospective customers, particularly children. Smokeless tobacco products like gutkha pouches are available at low prices making them affordable to the poor and vulnerable groups like women and children. These are easily available without licensing in all kinds of kiosks, tea-shops, road side stalls, etc. The wide distribution network and easy availability also promotes usages. The Expert Committee on the use of tobacco products in Pan Masala and Gutkha in its meeting held on 23.09.1997 under the Chairmanship of the Director General of Health Services, based on the scientific evidences available, strongly recommended the prohibition on use of tobacco as an ingredient in any food item and further recommended a ban on consumption of Pan Masala/Gutkha/chewing tobacco as these are injurious to public health. It is lastly submitted that the writ petition is, therefore, without any merit and liable to be dismissed.

11. A counter affidavit has also been filed by Deputy Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand, describing himself to be filing the affidavit on behalf of Respondent No. 1, though it is Respondent No. 2. It is stated that the impugned order dated 12.01.2021 has been passed in compliance with the directions of the Hon'ble Supreme Court of India dated 23.09.2016 in Central Areca-nut Marketing Corporation & Other's case (Supra) to all States and Union Territories for strict adherence to Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 and the concomitant ban imposed on manufacture and sale of Gutkha. As this matter is pending before the Hon'ble Supreme Court, this Court should refrain from passing any order on this issue. It is also stated by the State of Jharkhand that the impugned order is in consonance with the order dated 15.01.2021 of this Court in Fariyaad Foundation Vs. Government of Jharkhand & Ors, [W.P. (PIL) No. 954 of 2019], wherein a direction was given to the State of Jharkhand as well as Deputy Commissioners and Senior Superintendents of Police of every district to comply with the impugned order dated 12.01.2021. After reiterating the evil effects of consumption of tobacco, the State of Jharkhand has further re-emphasized the objective behind passing of comprehensive effect to FSSA and the applicability of Regulation 2.3.4 to all food products. The State also here reiterates the stand taken by the Union of India regarding the applicability and the object of the COTPA and the overriding effect of FSSA over COTPA in view of the fact that the COTPA is earlier legislation, whereas the FSSA is a latter legislation and by virtue of Section 89 of the FSSA, the said Act has an overriding effect. Moreover, it is submitted that the FSSA is more comprehensive Act and the COTPA is a restrictive Act in view of the fact that it only relates to tobacco and tobacco products. It is stated that in case of any conflict between the two, the latter will take precedence because of the overriding effect of the said Act. Thus, it is prayed on behalf of the State Government that the writ petition should be dismissed being devoid of any merit.

12. A rejoinder affidavit has been filed just to explain the different operating fields of COTPA and FSSA and it is submitted on behalf of the petitioner that COTPA being a special Act dealing only with tobacco, the latter Act will not override the said Act and any item, if it is not strictly termed as a 'food', cannot be restricted or prohibited in terms of its manufacture and sale, etc by the latter Act.

13. In course of hearing, the learned counsel for the petitioner would submit that Section 31 of the FSSA prescribes mandatory licensing for food business, but there is no provision under the FSSA or the Regulations to grant licence for chewing tobacco. The letter dated 10.10.2012 written by the office of the Food Safety and Standards Authority clinches the issue in this regard. Section 31 of the said Act is inapplicable to chewing tobacco products and the provisions of FSSA cannot be applied to the tobacco products.

13.1) Regarding the operating field of Regulation 2.3.4 of the Regulations, 2011, the learned counsel for the petitioner submits that though it does not lay down the standards for the scheduled tobacco products defined under COTPA, it prescribes a clear prohibition against the use of tobacco or nicotine in food products. The language of the aforesaid Regulation 2.3.4 itself admits an apparent distinction between the 'food products" on the one hand and tobacco and nicotine on the other hand. Section 7(5) of the COTPA permits presence of nicotine in tobacco. Thus, the Regulation 2.3.4 cannot be applied to tobacco products. Only such items, which are manufactured, packaged, advertised and sold as food, fall within the ambit of the aforesaid Regulation.

13.2) Learned counsel for the petitioner would further submit that prohibiting the manufacture, sale, storage, etc of chewing tobacco without mentioning the source of tobacco shows that there is a total non-application of mind and that the Commissioner of Food Safety does not have authority to prohibit the production, sale, etc of chewing tobacco without resorting to Section 30(2)(a) of the FSSA.

13.3) The learned counsel for the petitioner would also submit that the provision contained in Section 32 is ultra vires to the Constitution because of the excessive delegation of powers without any bridle or the restrain of the authority to the Food Safety Commissioner and, therefore, it should not have been any binding effect.

14. In course of hearing, learned Additional Solicitor General of India submits that since another matter arising out of a judgment of the Madras High Court is pending before the Hon'ble Supreme Court, this Court should refrain itself from taking a decision on the issue and should wait for the decision of the Hon'ble Supreme Court, which is countered by the learned counsel for the petitioner stating that no stay order has been passed by the Hon'ble Supreme Court prohibiting or restricting the High Courts from exercising jurisdiction under Article 226 of the Constitution of India to decide any case or litigation involving the question of prohibition of chewing tobacco and hence, the Court should not await the decision of the Hon'ble Supreme Court and should pass a judgment as per the law and understanding of the facts by the Court itself.

15. Moreover, we would also take note of the observations made by the Hon'ble Supreme Court in the case of Union Territory of Ladakh & Ors Versus Jammu and Kashmir National Conference & Anr decided on 6th September, 2023 in Civil Appeal No. 5707 of 2023, wherein it has observed that the judgments and orders by the High Courts are not deciding cases on the ground that the leading judgment of this Court on the subject is either referred to a larger Bench or a review petition relating thereto is pending. The Hon'ble Supreme Court has also come across certain examples of High Courts refusing deference to judgments of the Hon'ble Supreme Court on the score that a latter Coordinate Bench has doubted its correctness. Therefore, the Hon'ble Supreme Court has observed that it is absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands and it is not open, unless specifically directed by the Hon'ble Supreme Court, to await an outcome of a reference or a review petition, as the case may be.

16. The Hon'ble Supreme Court took note of a reported case wherein the Constitution Bench observed in National Insurance Company Limited Vs. Pranay Sethi, 2017:INSC:1068 : (2017) 16 SCC 680, [LQ/SC/2017/1578] that when there are conflicting judgments by Benches of equal strength of the Hon'ble Supreme Court, it is the earlier one which is to be followed by the High Courts.

17. The natural corollary of the this judgment is that even if any matter is pending before the Hon'ble Supreme Court in S.L.P. and similar question arises before the high Court, the High Court cannot refuse to decide the case. The High Court in no situation should shirk from discharging of its constitutional obligations and duties, especially when there is no stay order passed against the order impugned in the Hon'ble Supreme Court. It is submitted by the learned counsel for the petitioner that no stay order has been passed in the S.L.P. filed against the judgment of the Patna High Court in M/s. Omkar Agency (supra), hence, it is constitutional obligation and duties of this Court to decide the case on its own merits.

18. It is also brought to our notice that the Hon'ble Supreme Court is in seisin of SLP(C) No. 5140-5142/2023 arising out of judgment of the Madras High Court in Writ Appeal No. 2093 of 2018 (The Designated Officer Vs. Jayavilas Tobacco Traders LLP) decided on 20.01.2023, wherein the Designated Officer has assailed the order passed by the learned Single Judge holding that the provision of Section 30(2)(a) of the FSSA has to be limited to the powers to impose temporary ban in certain emergent situations. The Supreme Court in the aforesaid SLP has granted a stay vide order dated 25.04.2023 so far as the observations made by the Division Bench in the Writ Appeal at paragraph 13 of the impugned judgment in which the Madras High Court directed that the Commissioner of Food Safety relying upon Regulation 2.3.4 has exceeded its powers in issuing such successive notifications and thereby quashed the notifications. However, such order does not reveal that the ratio decided by the Madras High Court that the prohibitory orders that can be passed under Section 30(2)(a) can be exercised in emergent situation. This finding has not been stayed. Only the finding that the successive notifications cannot be passed, has been stayed by the order dated 25.04.2023.

19. The learned counsel appearing for the State has brought to our notice a judgment passed by the Delhi High Court in L.P.A. No. 742 of 2022 (pronounced on 10 April, 2023) in which while deciding the Letters Patent Appeal against the judgment passed by the learned Single Judge of the Court quashing the notification issued by exercise of powers conferred by Section 30(2)(a) of the FSSA (it was quashed by the learned Single Judge) has been set aside by the Division Bench of Delhi High Court. In the said case, the Division Bench of Delhi High Court held that the powers under Section 30(2)(a) of the FSSA though restricts to an emergent situation, there is no restriction on the Regulation 2.3.4 of the Regulations, 2011 and, therefore, the order was set aside by the appellate Bench. However, that case was carried to the Hon'ble Supreme Court in S.L.P. (Civil) Diary No. 30415/2023, which has been taken up on 01.09.2023 and the Hon'ble Supreme Court, until further orders, stayed the impugned judgment as well as the impugned notification dated 21.08.2023. Thus, it does not help out the respondents in any manner and only because such cases are pending before the Hon'ble Supreme Court, wherein no stay has been granted except to the extent indicated above, this Court should not indulge in disposing of the cases pending before it.

20. The learned Senior Counsel Mr. Jai Prakash, A.A.G.-1A, would submit that studies have shown that the use of tobacco has led to major health issues in this country and, therefore, the Parliament in its wisdom has enacted the FSSA which also includes prohibition of any food which contains tobacco or nicotine. Terming the Act regarding food safety and having overriding effect on the previous enactment made by the Parliament, the learned Senior Counsel appearing for the State of Jharkhand would submit that the notification impugned and the communications challenged are in tune with the Act passed by the Parliament as well as the Regulations of the year 2011, and, therefore, there is no merit in the writ application and it should be dismissed. The learned Senior Counsel appearing for the State would further expound upon the pleas taken in the counter affidavit/affidavits filed by the State of Jharkhand and the Union of India and would pray for dismissal of the writ petition.

21. Coming to the first question framed by us in the opening paragraph, we would take note of the definition of "Food" as provided under Section 3(1)(j) of the FSSA which reads as follows:-

"(j) "Food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality."

22. In interpreting this definition of "Food", the Division Bench of the Patna High Court in the case of M/s. Omkar Agency v. The Food Safety and Standards Authority of India, has relied upon the case of ITC Ltd. Vs. Agricultural Produce Market Committee, (2002) 9 SCC 232, [LQ/SC/2002/113] wherein the Hon'ble Supreme Court, while considering the levy of taxes and the expression of industry, observed, in no uncertain terms, that tobacco is, admittedly, not a foodstuff. Relying upon the aforesaid judgment, the Division Bench of the Patna High Court in the case of M/s. Omkar Agency (supra), has further held the fact that tobacco is not a food, is further strengthened by the fact that Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, does not define tobacco, because no standards can be possibly laid down for tobacco.

23. Thus, in view of the aforesaid finding of the Patna High Court, which has been challenged before the Hon'ble Supreme Court in S.L.P. (Civil) No. 12242 of 2017 which is pending, we accept and concur with the view taken by the Patna High Court and come to the conclusion that tobacco is not an item of food. A question which still remains to be considered is whether tobacco, which has been flavoured or contains food additives like preservatives, is a food In our considered opinion, by natural corollary to the aforesaid ratio decided by the Patna High Court following the judgment of the Hon'ble Supreme Court, a chewing tobacco containing food additives does not come within definition of 'food' under the FSSA.

24. The second question is regarding the jurisdiction of the Commissioner of Food Safety, i.e., whether the Commissioner has jurisdiction to permanently prohibit chewing tobacco under the provisions of FSSA. We have the opportunity of examining the said question in the case of Dharampal Satyapal Limited and another Versus The Union of India and others, W.P. (C) No. 3346 of 2022, vide judgment dated 28.08.2023. After taking into consideration the argument advanced and deciding the question whether Magnesium Carbonate and food additives being anti-caking agent, makes a Pan Masala unfit for human consumption, we have held as follows:-

"19) Section 30 provides for appointment of Commissioner of Food Safety and the duties to be performed by him. It reads as follows:-

"30. Commissioner of Food Safety of the State.-

(1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder.

(2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:-

(a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;

(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;

(c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety;

(d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility;

(e) sanction prosecution for offences punishable with imprisonment under this Act;

(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.

(3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him."

20) We take note of the fact that Section 30(2)(a) of the FSS Act provides that the Commissioner of Food Safety shall perform all or any of the factions, namely, prohibit in the interest of public health, the manufacture, storage, distribution or sale of an article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette.

21) The "Designated Officer" as appointed by the Commissioner of Food Safety has power to make a report to the Commissioner.

22) Section 34(1) of the FSS Act provides that if the Designated Officer is satisfied that the health risk condition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an "emergency prohibition notice"), apply to the Commissioner of Food Safety for imposing the prohibition. Sub-section (2) provides that if the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition. Sub-section (3) further provides that the Designated Officer shall not apply for an emergency prohibition order unless, at least one day before the date of application, he has served notice on the food business operator of the business of his intention to apply for the order. Sub-section (4) provides that as soon as practicable after the making of an emergency prohibition order, the Designated Officer shall require the Food Safety Officer to-(a) serve a copy of the order on the food business operator of the business; or (b) affix a copy of the order at a conspicuous place on such premises used for the purposes of that business; any person who knowingly contravenes such an order shall be guilty of an offence and shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to two lakh rupees. Sub-section (5) provides that an emergency prohibition order shall cease to have effect on the issue by the Designated Officer of a certificate to the effect that he is satisfied that the food business operator has taken sufficient measures for justifying the lifting of such order. Sub-section (6) provides that the Designated Officer shall issue a certificate under sub-section (5) within seven days of an application by the food business operator for such a certificate and on his being not satisfied, the said officer shall give notice to the food business operator within a period of ten days indicating the reasons for such decision. This clause empowers the Commissioner of the Food Safety to serve emergency prohibition notices and orders to the food business operator if the Designated Officer is satisfied that the health risk condition with respect to any food business and on an application made by him to the Commissioner of the Food Safety for imposing the appropriate prohibition. The Designated Officer shall not apply for an emergency prohibition order unless at least one day before the date of application, he has served notice on the food business operator of the business of his intention to apply for the order. Any person who knowingly contravenes such an order shall be guilty of an offence and shall be punishable with imprisonment as described above and emergency prohibition order shall cease to have effect on the issue by the Designated Officer of a certificate to the effect that he is satisfied that the food business operator has taken sufficient measures justifying lifting of such order (reference has been made to the notes and clauses appearing in the Act itself).

23) It is apparent that if Section 30(2)(a) of the FSS Act is taken in isolation with the other provisions of the Act, then the Commissioner of Food Safety has been delegated absolute power to ban any article of the food for such a period not exceeding one year. However, a purposive interpretation of the definition of "food", "business of food", "designated officer", etc reveals that the Act has certain built-in safeguards for imposition of a prohibitory order.

24) Thus, it is clear that the Commissioner of Food Safety, Section 30(3) of the FSS Act may, by order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under the Act (except the power to appoint Designated Officer) as he may deem necessary or expedient to any officer subordinate to him. Thus, it is clear that the Commissioner of Food Safety cannot act without a specific request made on this behalf by the Designated Officer. The Designated Officer cannot recommend or make an application to the Commissioner of Food Safety without issuing a notice to the concerned food business operator. Though, "food business" has been defined separately, we are of the considered opinion that these two definitions are complimentary to each other rather than being contrary to each other. Once an article is considered to be included in the definition of food, then, any transaction therein being manufacture, sale, storage, transportation, processing, etc shall be meant to be food business and a food business operator in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of this Act, rules and regulations made thereunder. Thus, it is clear that the power conferred upon the Commissioner of Food Safety is not excessive delegation if not unbridled. In other words, we may add that the powers conferred on the Commissioner of Food Safety have certain built-in safeguards in it, so that an order is not passed in a whimsical manner. In this connection, we take into consideration the judgment passed by the High Court of Patna in the case of Omkar Agency v. The Food Safety and Standards Authority of India, being the lead case, reported in Dealing with the similar questions, the Patna High Court has held that necessarily when the Preamble of the Act states that science based standardization would be adopted in laying down standards of food, the Commissioner, while exercising powers under Section 30, must be in possession of objective materials that the food, sought to be prohibited, does not conform to the standards as prescribed by the Regulations. It is necessary, therefore, to analyze the various provisions of the Food Act to ascertain the standardization process. Section 3(zl) of the Act defines "prohibition order" to mean an order issued under Section 33 of the Food Act. Section 33 reveals that prohibition orders can be passed by the Courts, when a food business operator is convicted. It lays down the general rule regarding prohibition. The High Court of Patna in paragraph 19 of the aforesaid judgment further observes that an exception to Section 34 of the Food Act, which provides for emergency prohibition order, has been incorporated. It provides that if the Designated Officer is satisfied that health risk exists with respect to any food business, he may, after a notice served on the food business operator (referred to in the Food Act as an "emergency prohibition notice"), apply to the Commissioner of Food Safety for imposing the prohibition. Section 34(2) further provides that if the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition. In paragraph 20 of the judgment, the Patna High Court has held that Section 30(2)(a) has to be understood in the light of Section 34. As a result, a prohibition order can be issued by the Commissioner of Food Safety only when a report is laid down by the Designated Officer that the health risk condition exists with respect to any food business. With respect to any food product, since there may be numerous brands, it is equally necessary of the Designated Officer and also the Commissioner of Food Safety to specify, which particular brand is to be prohibited. While dealing with the question whether before making an order under Section 30, the Commissioner is required to comply with the principles of natural justice, the Patna High Court has referred to the reported case of Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, [LQ/SC/1985/219] wherein the Constitution Bench of Hon'ble Supreme had the occasion to deal with the provisions of Section 314 of the Bombay Municipal Corporation Act, 1888. It was held by the Hon'ble Supreme Court that Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure, accompanying the performance of a public act, must be fair and reasonable. The Court must lean in favour of this interpretation, because it helps sustain the validity of the law. It was further held, in Olga Tellis (supra), that it must be presumed that, while vesting the Commissioner with the power to act without notice, the Legislature intended that the power should be exercised sparingly and, in cases of urgency, which brook no delay. In all other cases, no departure from the audi alteram partem rule could be presumed to have been intended. On the provisions of Section 314, the Hon'ble Supreme Court further held in Olga Tellis (supra) that it is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations, which demand exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule, which regulates all procedure, is that persons, who are likely to be affected by the proposed action, must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances, which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those, who affirm their existence.

25) Thus, it is clear that the argument advance by the learned Senior Counsel appearing for the petitioners that a delegation of unbridled power on the Commissioner of Food Safety is erroneous on the face of it and on that count itself, the Court cannot come to the conclusion that it is ultra vires of the Constitution of being excessive delegation.

26) We are, on the other hand, of the opinion that the powers conferred under Section 30(2)(a) of the FSS Act has to be read inconformity with other provisions of the Act, especially, Chapter VII. Special reference to the procedures laid down under Section 34 of the said Act. "Emergency prohibition notices and orders" has to be understood in the light of the expression appearing as "xxx xxx for such period, not exceeding one year, as may be specified xxx xxx" in Section 30(2)(a) of the FSS Act. Thus, we are of the further opinion that not only there are safeguards in the Act itself for exercise of powers conferred upon the Commissioner of Food Safety, but also this power should be exercised after following the principle of audi alteram partem or the principles of natural justice. Before passing any order, an application filed by the Designated Officer, the Food Commissioner should also consider the case of the party affected and should take into consideration the case put forth by them."

25. As discussed above, the Madras High Court in the case of The Designated Officer Vs. Jayavilas Tobacco Traders LLP, W.A. No. 2093 of 2018, (supra), has taken a similar view.

26. In applying the principles that we have already decided in the aforesaid case, we are of the further opinion that the safeguards provided therein have not been complied with. It is not the case of the respondents that the Designated Officer made an application to the Food Commissioner and on the basis of the same, the Food Commissioner has passed the order. It is further borne out from the records that the Food Commissioner himself has taken a decision basing on some data and there was no application of the Designated Officer to impose conditions like ban of manufacture, sale, possession, consumption of chewing tobacco. Moreover, it is also not the case of the State of Jharkhand that the Commissioner of Food Safety came to a conclusion, based on empirical data, or an application made by the Designated Officer that an emergent situation appears and it leaves no time for following principles of natural justice, especially when such order dated 18.12.2018 (Annexure 5) has been passed in perpetuality. In the meantime, the petitioner could have been asked to show cause or the affected parties, who are indulged in manufacture, storage, sale, distribution of chewing tobacco regarding the adverse effect of the said products. Thus, we are also of the further opinion that there has been a colourable exercise of powers by the respondents-authorities, especially respondent No. 3, and in exercise of such powers, an erroneous order, which is not sustainable under law, has been passed.

27. It is also brought to our notice that before issuing such notifications, no legislative impact assessment was made, though it is stated by the State of Jharkhand that it is a delegated legislation. The State did not make any endeavour to find out as to what shall be the impact of such a notification giving rise to filing of criminal cases against persons who have allegedly violated the ban in the notification and whether there is enough police force to exercise such ban on chewing tobacco. In fact, a Public Interest Litigation is pending before us in which the petitioner, therein, has alleged that the State is not taking appropriate steps for prosecuting the violations of the provisions of the FSSA read with the notifications issued by the State of Jharkhand.

28. Another important aspect is that it has been stated at the Bar that in spite of the ban, there is a rampant sale of smokeless tobacco in the State, in which the State is losing a lot of revenue. Thus, the colourable exercise of power without a proper conclusion on the basis of empirical data or an application of the Designated Officer, an emergent order passed under Section 30(2)(a) of the FSSA is definitely vulnerable to be interfered with in the writ jurisdiction. Thus, we come to the conclusion that the Commissioner of Food Safety has no jurisdiction to issue a perpetual order prohibiting storage, sale, production, etc of chewing tobacco.

29. The next question is tobacco industry and food industry are two distinct and separate industries-one falling under the COTPA and the other, falling under the FSSA. In this issue, we also rely upon the judgment of the Patna High Court in the case of M/s. Omkar Agency (supra), wherein the Patna High Court has come to the conclusion that the dispute is between a Central Legislation and Regulation of another Central Regulation. The Patna High Court also took into consideration various judgments of the Hon'ble Supreme Court and the fact that chewing tobacco is specifically mentioned in Section 3(q) read with the Schedule of the COTPA. The Division Bench has also taken into consideration the different Central Government Rules and Legislations like Cigarettes and Other Tobacco Products (Display of Board by Educational Institutions) Rules, 2009; Cigarettes and Other Tobacco products (Packaging and Labelling) Amendment Rules, 2012; Cigarettes and Other Tobacco products (Packaging and Labelling) Rules, 2008, Cigarettes and Other Tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004; Cigarettes and other Tobacco products (Packaging and Labelling) Amendment Rules, 2014, and has come to the conclusion that the COTPA is an exclusive law which deals with tobacco and tobacco products, whereas, the FSSA is an exclusive law which deals with foods other than tobacco.

30. Another issue is that by banning chewing tobacco only, without a similar ban on smoking tobacco, will only discriminate between two different classes of players indulged in manufacturing of the two products. There is no ban on production, manufacture, possession, sale, transportation, etc on smoking tobacco, whereas, there is ban on the manufacture, sale, storage, etc of chewing tobacco. It is not only discriminatory but loaded against one type of producers without any similar ban on a similar product which is known to be equally harmful to humans. This is an additional ground on which the notifications are required to be interfered with.

31. The next question is, whether the tobacco product cannot be treated as 'food' under the FSSA in spite of the fact that food additives are found in the finished goods and it remains essentially a tobacco product to be regulated under the COTPA and not under the FSSA In view of our discussions above in the preceding paragraphs, this question has already been answered and considered that tobacco product cannot be treated as 'food' in spite of the fact that food additives are found in the finished goods and remains essentially a tobacco product to be regulated under COTPA and not under the FSSA.

32. Therefore, on the basis of the aforesaid analysis, the impugned notification dated 18.12.2018 (Annexure 5) is liable to be quashed because of lack of jurisdiction as well as non-application of mind by the Commissioner of Food Safety. However, the notification dated 21.09.2017 (Annexure 4) issued by the Union of India, is an advisory to the State Government to regulate the sale of tobacco products by license, etc under the COTPA. It is not violative of any provision of law, hence, it is not liable to be quashed. We further make it clear that this judgment will not be seen as an order permitting sale of Gutkhas containing Pan Masala and chewing tobacco, as a mixture/preparation to be consumed as it is.

33. In the result, the impugned notification dated 18.12.2018 is quashed, subject to the observations made in the preceding paragraphs.

34. With the aforesaid observations and directions, this writ petition is allowed.

35. Pending Interlocutory Applications, if any, stand disposed of.

36. There shall be no orders as to costs.

37. Urgent Certified copies as per rules.